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Ronald A. Nurse v. the City of Atlantic City Government

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 15, 2012

RONALD A. NURSE, PLAINTIFF-APPELLANT,
v.
THE CITY OF ATLANTIC CITY GOVERNMENT, ATLANTIC COUNTY GOVERNMENT, THE ATLANTIC CITY POLICE DEPARTMENT, POLICE OFFICER M. MURRAY, POLICE OFFICER P. TALIASERRO, POLICE OFFICER W. SANTIAGO, DEFENDANTS-RESPONDENTS.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-3539-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 23, 2012

Before Judges Sapp-Peterson and Newman.

Plaintiff Ronald Nurse appeals from the order of January 31, 2011 granting defendant's motion to dismiss plaintiff's complaint for impropriety of pleading.

In our prior decision on January 13, 2010, we reversed and remanded this case to permit both sides to be heard on the question of why the complaint failed to state a cause of action. Nurse v. Atl. Cnty. Gov't, et als., No. A-2272-08 (App. Div. January 13, 2010) (slip. op. at 5-6). In doing so, however, we noted that the "pro se complaint in this case is long with incoherent, argumentative, and irrelevant passages." Id. at 5. In concluding our prior opinion, we alerted the trial court as follows: "Due to the offensive, crude slang and coarse language used in the complaint and its abusive verbal assaults, the trial court may also consider application of [Rule]4:6-4."

Following the remand, defendants moved to dismiss plaintiff's complaint pursuant to Rule 4:6-4(b). That rule provides as follows:

On the court's or a party's motion, the court may either (1) dismiss any pleading that is, overall scandalous, impertinent, or, considering the nature of the cause of action, abusive of the court or another person; or (2) strike any such part of a pleading or any part thereof that is immaterial or redundant. The order of dismissal shall comply with [Rule] 4:37-2(a) and may expressly require, as a condition of the refiling of a pleading asserting a claim or defense based on the same transaction, the payment by the pleading party of attorney's fees and costs incurred by the party who moved for dismissal.

Defendants point out that pleadings shall be specific, concise and direct as required by Rule 4:5-7. An examination of plaintiff's complaint, as pointed out by defendants, shows it to be "anything but specific, concise and direct, but rather it is replete with scandalous, impertinent, abusive and irrelevant ramblings and should be dismissed pursuant to [Rule]4:6-4(b)." On appeal, plaintiff argues that he did not use "any foul or inappropriate language," and asks for his day in court. Plaintiff misconceives the test for an impropriety in pleading.

It does not have to contain "curse words." The complaint is, in fact, replete with irrelevant, abusive, impertinent and scandalous language references. It is repetitious and argumentative and falls squarely within the type of pleading that Rule 4:6-4 was designed to prohibit.

Most significantly, defendants contend that the appeal in this matter is from an interlocutory order, and plaintiff failed to seek a timely review. As a consequence, defendants maintain that the appeal should be dismissed. We agree.

Rule 2:2-3(a)(1) provides that appeals as of right may only be taken from a final judgment of the trial court. That means that the court's order must dispose of all claims of all parties. We elaborated on how a party must proceed in the absence of a final order in Janicky v. Point Bay Fuel, Inc., 396 N.J. Super. 545, 550 (App. Div. 2007) where we stated:

If an order is not a final judgment, a party must be granted leave to appeal by the Appellate Division. R. 2:2-4; R. 2:5-6(a). In recognition of the fact that "[i]interlocutory appellate review runs counter to a judicial policy that favors an 'uninterrupted proceeding at the trial level with a single and complete review[,]'" our appellate courts exercise their authority to grant leave to appeal "only sparingly."

[(quoting State v. Reldan, 100 N.J. 187, 205 (1985) (quoting In re Pa. R.R., 20 N.J. 398, 404 (1956))).]

Here, plaintiff's complaint was dismissed, but plaintiff still had a viable course of action by refiling a complaint without the improprieties that led to the dismissal. The trial court was still in a position to entertain jurisdiction that led to the dismissal. That being so, plaintiff was obliged to seek leave of this court for interlocutory review. R. 2:2-3(b). He failed to do so and, therefore, must bear the consequences of dismissal of his appeal.

The appeal is dismissed.

20120215

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